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SOLAR ENERGY POWER PURCHASE AGREEMENT
BY AND BETWEEN
ONYX Development Group LLC,
AS SYSTEM OWNER
AND
THE CITY OF EVANSTON, ILLINOIS,
AS THE CITY
Document ID: 1709a2cb03aefba37c2f32a6dc71ef2130e38e037b346f27e99a62212e4d39bc
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SOLAR ENERGY POWER PURCHASE AGREEMENT
This SOLAR ENERGY POWER PURCHASE AGREEMENT (this “Agreement”) is
made and entered into as of February 12, 2024 (the “Effective Date”), by and
between Onyx Development Group LLC, a Delaware limited liability company
(“System Owner”), and the City of Evanston, Illinois, a municipal corporation
(“the City”). Each of System Owner and the City is sometimes referred to as a
“Party” and together, as the “Parties.”
RECITALS
A. The City owns and controls certain property located at 1801 Main St,
Evanston, IL 60202, as more particularly described on the attached Exhibit A
and incorporated by reference herein (the “Premises”), which Premises uses
Electricity (as defined in Section 1.2).
B. The City has granted to System Owner access to a portion of the Premises
described and depicted on Exhibit A-1 and incorporated by reference herein
(the “Site”) together with certain rights of access to, ingress to and egress
from, and use of the Premises for the purposes of constructing, installing,
operating, maintaining, replacing, and repairing a solar photovoltaic electric
generation system, as described on the attached Exhibit B and incorporated
herein by this reference (the “System”), and selling the Electricity generated
from the System to the City.
C. System Owner, at the City’s request, intends to design, install, own,
operate, and maintain the System for the production of Electricity at the Site
per Attachment A.4 Solar PV Design Specifications.
D. System Owner desires to sell, and the City desires to purchase, all of the
Output (as defined in Section 1.2).
NOW, THEREFORE, in consideration of the mutual promises, covenants and
undertakings set forth herein, and intending to be legally bound hereby, the
Parties hereby agree as follows:
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ARTICLE 1
DEFINITIONS; RULES OF INTERPRETATION
Section 1.1 Rules of Interpretation.
Section 1.1.1 In this Agreement, unless the context requires otherwise, the
singular includes the plural and the plural the singular, words importing any
gender include the other gender; references to statutes, sections or
regulations are to be construed as including all statutory or regulatory
provisions consolidating, amending, replacing, succeeding or supplementing
the statute, section or regulation referred to; the words “including,”
“includes” and “include” shall be deemed to be followed by the words
“without limitation” or “but not limited to” or words of similar import;
references to articles, sections (or subdivisions of sections), exhibits, annexes
or schedules are to those of this Agreement unless otherwise indicated;
references to agreements and other contractual instruments shall be deemed
to include all exhibits and appendices attached thereto and all subsequent
amendments and other modifications to such instruments, and references to
Persons include their respective successors and permitted assigns.
Section 1.1.2 The Parties acknowledge that this is an arms-length
transaction and, in the event of any dispute over its meaning or application,
this Agreement shall be interpreted fairly and reasonably, and neither party
shall benefit from a presumption of construction favoring that party.
Section 1.2 Definitions.
The following terms have the following meanings:
“Agreement” has the meaning set forth in the introductory paragraph.
“Base Contract Price” means the price in $U.S. per kWh to be paid by Site
Host to System Owner in Year 1 for the purchase of Output, as specified in
Article 4 and Exhibit C.
“Business Day” means any day other than Saturday, Sunday, or a day on
which the Federal Reserve Bank is authorized or required to be closed.
“Commercial Operation” means the condition existing when (a) the System is
capable of generating Electricity for four (4) continuous hours and (b) such
Electricity is delivered through the Meter to the Site Electrical System.
“Commercial Operation Date” has the meaning given in Section 4.4.
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“Commercial Operation Deadline” has the meaning given in Section 5.1.
“Contract Year” means the twelve month period beginning on the
Commercial Operation Date or on any anniversary of the Commercial
Operation Date and ending on the next anniversary of the Commercial
Operation Date.
“Conditions Precedent” has the meaning given in Section 5.1.
“Delivery Point” has the meaning given in Section 4.2.
“Defaulting Party” has the meaning given in Section 13.1.
“Dispute” has the meaning given in Section 20.1.1.
“Due Date” has the meaning given in Section 8.3.
“Early Termination Date” has the meaning given in Section 13.2.
“Early Termination Fee” has the meaning given in Section 13.4 and Exhibit C.
“Effective Date” has the meaning given in the introductory paragraph.
“Electricity” means electrical energy.
“Electricity Provider” means the entity providing for the supply of electrical
energy to the City. Electricity Provider may be, as applicable, Host Utility or
an Alternative Electric Retail Supplier (as defined in 220 ILCS 5/16-102).
“Emergency” means an event occurring at the Site, or on the adjoining
Premises, that (a) poses actual or imminent risk of (i) serious personal injury
or (ii) material physical damage to the System and (b) requires, in the good
faith determination of the City or System Owner, immediate preventative or
remedial action.
“Event of Default” has the meaning given in Section 13.1.
“Exercise Notice” has the meaning given in Section 15.7.
“Exercise Period” has the meaning given in Section 15.7.
“Extended Outage” has the meaning given in Section 10.6.
“Extension Period” has the meaning given in Section 2.1.2.
“Fair Market Value” has the meaning given in Section 15.2. For clarity, Fair
Market Value may not equal the Early Termination Fee set forth in Section
13.4 and Exhibit C.
“Final Determination” has the meaning given in Section 15.5.3.
“Force Majeure Event” means any circumstance not within the reasonable
control, directly or indirectly, of the Party affected, but only if and to the
extent that (a) such circumstance, despite the exercise of due diligence,
cannot be or be caused to be prevented, avoided or removed by such Party,
(b) such event is not due to such Party’s negligence or intentional
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misconduct, (c) such event is not the result of any failure of such Party to
perform any of its obligations under this Agreement, (d) such Party has taken
all reasonable precautions, due care, and reasonable alternative measures to
avoid the effect of such event and to mitigate the consequences thereof and
(e) such Party has given the other Party prompt notice describing such event,
the effect thereof and the actions being taken to comply with this
Agreement. Subject to the foregoing conditions, Force Majeure Events may
include: adverse weather conditions and other acts of nature, subsurface
conditions, riot or civil unrest, actions or failures to act of any governmental
authority or agency, but does not include any inability to make any payments
that are due hereunder or to any third party, or to procure insurance
required to be procured under this Agreement.
“Green Attributes” means any and all credits, benefits, emissions reductions,
offsets, and allowances, howsoever entitled, attributable to the generation
from the System or its displacement of conventional energy generation.
Green Attributes include but are not limited to Renewable Energy Credits or
any other credits representing environmental attributes now in existence or
available in the future. Green Attributes do not include System Financial
Incentives.
“City” has the meaning given to it in the introductory paragraph.
“Host Utility” means the electric distribution company serving or connected
to the City or the Site.
“Indemnified Parties” has the meaning given in Section 16.2.
“Indemnifying Party” has the meaning given in Section 16.2.
“Independent Appraisal” means the process for determining a Purchase Price
in accordance with Section 15.5.
“Independent Appraiser” has the meaning given in Section 15.5.1.
“Interconnection and Net Metering Agreements” means, collectively, as
appropriate, (a) the interconnection or net metering agreement to be
entered into by the City or System Owner and Host Utility for the
interconnection of the System to the Host Utility system and to net meter the
System with the Host Utility, (b) any interconnection services agreement and
(c) any studies regarding interconnection of new generation facilities with
respect to the System.
“Lender” or “Lenders” means, either in the singular or collectively, as
applicable, the banks, financial institutions or other institutional investors
providing debt or equity financing for the System and any trustee or agent
acting on any such Person’s behalf.
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“Mortgagee” means any Person that holds or is the beneficiary of a
mortgage, deed of trust, lien, security interest or any other similar
encumbrance affecting the Premises, as applicable.
“Meter” means revenue grade meter(s) and electronic data acquisition
equipment to be used to continuously measure and record the Output.
“Non-Defaulting Party” has the meaning given in Section 13.2.
“Output” means, and is limited to, the Electricity produced by the System and
delivered by System Owner to the City at the Delivery Point.
“Party” or “Parties” has the meaning given to it in the introductory
paragraph.
“Permit” means an approval, license, or other authorization from a unit of
government including federal, state, provincial, county, municipal, regional,
environmental or other governmental body having jurisdiction over System
Owner or the City and their respective obligations under this Agreement or
over the System or the Site, as may be in effect from time to time.
“Person” means any natural person, partnership, trust, estate, association,
corporation, limited liability company, governmental authority or agency or
any other individual or entity.
“Preliminary Determination” has the meaning given in Section 15.5.2.
“Premises” has the meaning given to it in the Recitals.
“Purchase Option” has the meaning given in Section 15.1.
“Purchase Price” has the meaning given in Section 15.2.
“Renewable Energy Credits” means all certificates (including tradable
renewable certificates), “green tags,” or other transferable indicia denoting
carbon offset credits or indicating generation of a particular quantity of
energy from a renewable energy source by a renewable energy facility
attributed to the Output during the Term created under a renewable energy,
emission reduction, or other reporting program adopted by a governmental
authority, or for which a registry and a market exists or for which a market
may exist at a future time.
“Reporting Rights” means the right of System Owner to report to any federal,
state, or local agency, authority or other party, including without limitation
under Section 1605(b) of the Energy Policy Act of 1992 and provisions of the
Energy Policy Act of 2005, or under any present or future domestic,
international or foreign emissions trading program, that System Owner owns
the Green Attributes and the Environmental Financial Incentives associated
with the Output.
“Scheduled Outage” has the meaning given to it in Section 10.5.
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“Site” has the meaning given to it in the Recitals.
“Site Lease Agreement” has the meaning given to it in the Recitals.
“Site Electrical System” means the City’s existing building electrical systems
that are owned or leased, operated, maintained and controlled by the City,
and which systems are interconnected with the Host Utility.
“Solar Electricity Price” has the meaning given to it in Section 8.1.
“Subcontractor” means any subcontractor, of any tier, or supplier of services
to System Owner or any subcontractor, of any tier.
“System” has the meaning given to it in the Recitals.
“System Assets” means all equipment, facilities and materials, including
photovoltaic arrays, DC/AC inverters, wiring, Meters, tools, and any other
property now or hereafter installed, owned, operated, or controlled by
System Owner for the purpose of, or incidental or useful to, maintaining the
use of the solar generation system and providing Output to the City at the
Delivery Point, and as it may be modified during the Term. For the avoidance
of doubt, the System Assets specifically exclude any part of the Site Electrical
System.
“System Financial Incentives” means each of the following financial rebates
and incentives that is in effect as of the Effective Date or may come into
effect in the future including, but not limited to, (a) any federal, state, or local
tax credits, deductions, or other benefits based on ownership of, production
from, operation of, or investment in the System, and (2) any grants, loans, or
other funding available on advantageous terms based on the characteristics
of the System from any source (including units of government, utilities, and
private entities). System Financial Incentives do not include Green Attributes.
“System Outage” has the meaning given to it in Section 10.2.
“System Owner” has the meaning given to it in the introductory paragraph.
“Tax Benefits” means all federal, state and local tax deductions, tax credits,
tax grants, investment tax credits, production tax credits, and other tax
benefits available to taxpayers, including grants under Section 1603 of the
American Recovery and Reinvestment Act of 2009, Public Law 111 -5, as well
as any replacements or modifications to such tax deductions, credits, grants
or benefits.
“Term” has the meaning given to it in Section 2.1.
“Transfer Date” has the meaning given to it in Section 15.8.
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ARTICLE 2
TERM
Section 2.1 Term.
Section 2.1.1 This Agreement shall come into full force and effect and
become binding on the Parties on the Effective Date and shall be in effect
until the later of 00:00 hours on the twenty-fifth (25th) anniversary of the
Commercial Operation Date or the end of any Extension Period, unless earlier
terminated (the “Term”).
Section 2.1.2 The Parties may mutually agree to extend the Term for two (2)
consecutive periods of five (5) years each (each such extension, an “Extension
Period”) in accordance with this Section 2.1.2, with each such Extension
Period expiring at 00:00 hours on the respective anniversary of the
Commercial Operation Date. No fewer than 180 days before the end of the
Term, as may be extended pursuant to this Section 2.1.2, System Owner shall
provide notice to the City of System Owner’s desire to extend the Term for an
additional five (5) years. the City shall respond to System Owner’s notice
within ninety (90) days of receipt indicating whether the City agrees to extend
the Term for an additional five (5) years. If the City notifies System Owner
that the City does not agree to extend the Term, the Term shall expire in
accordance with Section 2.1.1.
Section 2.1.3 Notwithstanding the provisions of this Section 2 regarding the
Effective Date, the Parties agree that this Agreement does not take effect
unless and until the following Conditions Precedent have been met:
A. Conditions Precedent to System Owner’s Obligations.
○ The completion and approval, as applicable, of all necessary
governmental filings or applications for Green Attributes and
Environmental Financial Incentives relating to the operation of the
System;
○ The receipt and any applicable required regulatory approval of all
Permits relating to the System; and
○ The receipt of final approval of the Interconnection and Net
Metering Agreements with the Host Utility.
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B. Conditions Precedent to the City’s Obligations.
The obligations of the City hereunder are conditioned on and subject to the
satisfaction or waiver of the following Conditions Precedent. System Owner
shall have received all required approvals relating to the System by the
applicable public utility commission or as otherwise required by applicable
law.
ARTICLE 3
CONSTRUCTION AND INSTALLATION OF SYSTEM
Section 3.1 Construction and Installation of System.
System Owner (or its Subcontractors) shall design, engineer, procure, install,
construct, service, test, interconnect and start-up the System at the Site in a
good and workmanlike manner, in accordance with all applicable codes, laws
and regulations, and consistent with the technical specifications set forth in
Exhibit B, which are hereby incorporated in this Agreement.
Section 3.2 Subcontractors.
Without limiting System Owner’s liability or obligations under this
Agreement, System Owner may engage Subcontractors to meet any
obligation under this Agreement. Any Subcontractors engaged by System
Owner to perform any portion of the obligations described in this Agreement
shall have all licenses and registrations required to perform the services to be
performed by such Subcontractor, and, unless otherwise agreed to in writing
by the City, any such Subcontractor must maintain insurance as required
pursuant to Section 17.1. Upon request, System Owner shall provide the City
with evidence that any such Subcontractor has obtained insurance as
required pursuant to Sections 17.1 and Section 17.4.
All subcontractor agreements shall include verbatim or by reference the
provisions in this Agreement binding upon System Owner as to all Services
provided by this Agreement, such that it is binding upon each and every
subcontractor that does work or provides Services under this Agreement.
ARTICLE 4
CONNECTION AND DELIVERY POINT; PURCHASE AND SALE OF OUTPUT
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Section 4.1 Purchase and Sale of Output.
Commencing on the Commercial Operation Date and continuing throughout
the Term, System Owner will make available to the City, and the City will take
delivery of, at the Delivery Point, all of the Output produced by the System.
Any Output not immediately usable by the City will be exported to the
Electricity Supplier pursuant to the Net Metering Tariff or Interconnection
and Net Metering Agreements, or other similar agreement as applicable.
Each Party agrees that, during the Term, it will not seek to change any of the
rates or terms of this Agreement by making a filing or application with any
local, state or federal agency with jurisdiction over such rates or terms or
exercise any rights a Party may have, if any, to seek changes to such rates or
terms without prior written consent of the other Party, such consent not to
be unreasonably withheld. This provision does not affect either Party’s ability
to amend this Agreement pursuant to Section 20.3.
Section 4.2 Delivery Point.
System Owner will deliver Output to the physical location where the System
connects to the Site Electrical System (“Delivery Point”). Title to, risk of loss
of, and custody and control of, the Output will pass from System Owner to
the City at the Delivery Point.
Section 4.3 Connection Responsibilities.
System Owner is responsible for the interconnection of the System to the Site
Electrical System and is solely responsible for all equipment, maintenance,
and repairs associated with such interconnection equipment in accordance
with the terms and conditions of this Agreement. the City shall at all times
own and be responsible for the operation and maintenance of the Site
Electrical System at and from the Delivery Point, as provided in Section 12.3.
Section 4.4 Commercial Operation Date.
System Owner will give the City not fewer than five (5) Business Days’ prior
written notice that the System will begin Commercial Operation on the date
indicated in such notice (such date, the “Commercial Operation Date”).
Section 4.5 No Resale by the City.
The City certifies and agrees that it will use Output for the City’s electricity
needs, and dispose of excess Output beyond the City’s electricity needs
through the Interconnection and Net Metering Agreement.
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Section 4.6 Taxes and Other Governmental Charges.
To the extent that System Owner or the City becomes responsible for the
payment of any tax or other government fees as a result of the placement,
operation or maintenance of the System on the Premises during the Term of
this Agreement, System Owner is responsible for the payment of all such
taxes, fees, and/or assessments. Such obligation shall be limited to the
construction, operation, and maintenance of the System Assets constructed
by the System Owner on the Premises. The City shall pay for any and all taxes
or other government fees assessed on the generation, sale, delivery or
consumption of electric energy produced by the System.
ARTICLE 5
COMMERCIAL OPERATION DEADLINE
Section 5.1 Commercial Operation Deadline.
The Parties agree that the Commercial Operation Date must occur on or
before November 1, 2024 (“Commercial Operation Deadline”)
System Owner shall use commercially reasonable efforts to (a) cause
installation of the System to be completed and (b) cause the System to begin
Commercial Operation on or before the Commercial Operation Deadline.
The Parties may, upon mutual written agreement, extend the Commercial
Operation Deadline by no more than [180] days.
Section 5.2 Termination for Failure to Meet Commercial Operation
Deadline.
If the Commercial Operation Date has not occurred on or before the
Commercial Operation Deadline or any extension thereof as provided in
Section 5.1 System Owner shall be in default and the City may terminate this
Agreement pursuant to the default provisions of Article ____ herein;
provided, however, that such right to terminate shall not be available to the
City if the City’s failure to fulfill any material obligations under this Agreement
has been the cause of, or resulted in, the failure to meet the Commercial
Operation Deadline and provided further that the Commercial Operation
Deadline shall be extended by one day for each day of delay caused by (i)
Force Majeure, (ii) delays in the receipt of any approvals by the applicable
utility, or (iii) delays caused by an applicable governmental entity, provided
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that such delays set forth in (ii) and (iii) are not the result of any act or
omission on the part of System Owner.
ARTICLE 6
ACCESS AND SPACE PROVISIONS; EMERGENCIES
Section 6.1 Adequate Access for System Owner.
System Owner and its Subcontractors, agents, consultants, and
representatives shall have access to the Premises, the Site, the System, all
System Assets, System operations and any documents, materials, records and
accounts relating thereto in accordance with and subject to the terms and
conditions of the Site Lease Agreement. System Owner must provide the City
written notice 24-hours in advance of System Owner, and any of its
subcontractors, agents, consultants and representative intent to access.
Section 6.2 Emergencies.
In the event of any Emergency, the City and System Owner, as applicable,
shall take such action as may be reasonable and necessary to prevent, avoid
and mitigate injury, damage or loss to the System, and any interruption,
reduction or disruption of its proper operation, and shall, as soon as
practicable, report any such incident, including such Party’s response thereto,
to the other Party.
Section 6.3 Data Acquisition System.
During the Term, the City shall make available to System Owner broadband
internet access at the Premises necessary for System Owner’s equipment to
continuously monitor the System’s performance.
ARTICLE 7
OWNERSHIP OF SYSTEM, ENVIRONMENTAL ATTRIBUTES AND FINANCIAL
INCENTIVES
Section 7.1 System Is Personal Property of System Owner .
At all times throughout the Term, the System shall be and shall remain
System Owner’s personal property, shall not be a fixture on the Site, and may
be removed by System Owner in accordance with the terms and conditions of
this Agreement and the Site Lease Agreement. System Owner shall have the
right to file in the central and City records in which the Premises are located
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financing statements evidencing System Owner’s title to the System. Neither
the System nor any of its components may be sold, leased, assigned,
mortgaged, pledged or otherwise alienated or encumbered by the City. the
City shall not cause or permit the System or any part thereof to become
subject to any lien, encumbrance, pledge, levy or attachment except for such
liens, encumbrances, pledges, levies, or attachments entered into by the
System Owner including but not limited to construction liens. However, in no
event shall System Owner allow any encumbrances on the System that
prevents System Owner from discharging its obligations under this
Agreement, including to provide electricity to the City.
Section 7.2 Ownership of System Financial Incentives, Tax Benefits and
Green Attributes.
System Owner is the owner, and entitled to the benefit of all System Financial
Incentives and Tax Benefits. The City shall cooperate with System Owner in
obtaining, securing and transferring all System Financial Incentives and the
benefit of all Tax Benefits to System Owner, including by using the electric
energy generated by the System in a manner necessary to qualify for such
available System Financial Incentives and Tax Benefits. The City shall not be
obligated to incur any out-of-pocket costs or expenses in connection with
such actions for the benefit of the System Owner unless reimbursed by the
System Owner. The Host Utility shall be the beneficial owner, and entitled to
the benefit of all Green Attributes.
ARTICLE 8
PURCHASE PRICE, INVOICING AND PAYMENT
Section 8.1 Solar Electricity Price.
The price for Output shall be on a cents-per-kilowatt-hour alternating current
basis, as measured by the Meter, beginning at the Base Contract Price, such
rate to be adjusted on each anniversary of the Commercial Operation Date,
as set forth in the schedule attached as Exhibit C and incorporated by
reference herein (the price for Output as in effect from time to time, the
“Solar Electricity Price”).
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Section 8.2 Invoices.
Each month, System Owner shall prepare and provide the City with an invoice
for the Output delivered in the prior month. The amount due for the Output
shall be determined by multiplying the Solar Electricity Price then in effect by
the Output deemed delivered to the City during such month, and each invoice
will set forth in reasonable detail the calculation of all amounts owed to
System Owner.
Section 8.3 Payments.
The City shall approve, disapprove, and pay invoices from System Owner in
accordance with the provisions of the Illinois Local Government Prompt
Payment Act, 50 ILCS 505/1 et seq.
ARTICLE 9
METERING
Section 9.1 Meter.
System Owner shall install the Meter at the Delivery Point to measure the
amount of Output delivered by System Owner to the City. System Owner shall
own, operate and maintain the Meter during the Term at its own expense.
Section 9.2 Meter Reading.
System Owner shall read the Meter at the end of each calendar month, and
shall record the Output delivered to the City. The Meter shall be used as the
basis for calculating the amounts to be invoiced pursuant to Section 8.2.
Upon written request, System Owner will make available to the City the
records from the Meter.
Section 9.3 Calibration.
Section 9.3.1 System Owner shall provide calibration testing of the Meter
prior to its installation and at least annually thereafter to ensure the accuracy
of the Meter. the City may request that System Owner perform more
frequent testing; provided, however, that if such tests indicate that the Meter
is accurate within two percent (2.0%), then any such testing in excess of the
annual tests shall be at the City’s expense. The City shall be entitled to
witness such tests.
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Section 9.3.2 If, upon testing, any Meter is found to be accurate or in error
within two percent (2%), then previous recordings of such Meter shall be
considered accurate in computing deliveries of Output hereunder, but such
Meter shall be promptly adjusted, if necessary, to record correctly.
Section 9.3.3 If, upon testing, any Meter shall be found to be inaccurate by an
amount more than plus or minus two percent (2%), then the System Owner
shall promptly repair or adjust such Meter to record properly and any
previous recordings by such Meter shall be corrected to zero error. If no
reliable information exists as to the period over which such Meter registered
inaccurately, it shall be assumed for purposes of correcting previously
delivered invoices that such inaccuracy began at a point in time midway
between the testing date and the next previous date on which such Meter
was tested and found to be accurate. If the difference in the previously
invoiced amounts minus the adjusted payment is a positive number, that
difference shall offset amounts owed by the City to the System Owner in
subsequent month(s). If the difference is a negative number, the difference
shall be added to the next month’s invoice and addressed by the City as set
forth in Section 8.3 of this Agreement.
ARTICLE 10
INTERRUPTION OF SERVICE; SCHEDULED OUTAGES
Section 10.1 Obstructions.
The City shall not install or permit to be installed on the Premises (or any
other property owned or controlled by the City) any physical obstruction that
has or could reasonably be expected to have the effect of reducing Output.
Section 10.2 Interruption of Output.
Notwithstanding anything to the contrary herein, System Owner shall have
the right to interrupt, reduce or discontinue the delivery of Output for
purposes of inspecting, maintaining, repairing, replacing, constructing,
installing, removing, or altering the equipment used for the production or
delivery of Output, or at the direction of authorized governmental authorities
or electric utilities (a “System Outage”). Other than unexpected interruptions
or Emergencies, System Owner shall give the City notice at least five (5)
Business Days before an interruption of Output deliveries and an estimate of
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the expected duration of the interruption. Both System Owner and the City
shall use commercially reasonable efforts to minimize any such interruption
or disruption in delivery.
Section 10.3 Repair and Maintenance.
Section 10.3.1 System Owner shall use commercially reasonable efforts to
maintain the System in good working order, and shall operate the System in
accordance with all applicable laws, regulations and ordinances.
Section 10.3.2 The City shall be solely responsible for the repair and
maintenance of the Premises, including the Site and the Site Electrical
System; provided, however, that if such repair, maintenance or replacement
is caused by the negligence or intentional misconduct of System Owner, then
System Owner shall be responsible for such costs to the extent of its
negligence or intentional misconduct. the City and System Owner shall
coordinate such activities so as to minimize disruption to the System.
Section 10.3.3 The City shall notify System Owner immediately upon the
City’s knowledge of (a) any material malfunction of or damage to the System
and (b) any interruption or alteration of Output to the Premises.
Section 10.3.4 The City may not adjust, modify, maintain, alter, service or in
any way interfere with the System, except in the event of an Emergency;
provided, however, that the City shall give System Owner prompt telephonic
notice in such emergency that it has taken such emergency actions.
Section 10.3.5 System Owner shall bear the costs associated with restoring
service following any interruption of the supply of Electricity from the System
as a result of System Owner’s operation of the System. The City shall bear the
costs associated with the restoration of the delivery of Output if an
interruption of such supply of Electricity is caused by the actions or inactions
of the City or the condition of the Site Electrical System.
Section 10.4 Scheduled Outages.
The City may schedule up to two (2) full twenty-four (24) hour periods of
disconnection from the System (each, a “Scheduled Outage”) per calendar
year during the Term, during which days the City shall not be obligated to
accept or pay for electricity from the System; provided, however, that the
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City must notify System Owner in writing of each such Scheduled Outage at
least forty-eight (48) hours in advance of the commencement of a Scheduled
Outage. If Scheduled Outages exceed two (2) days per calendar year or there
are unscheduled outages, in each case for a reason other than a Force
Majeure event, System Owner will reasonably estimate the amount of
electricity that would have been delivered to the City during such excess
Scheduled Outages or unscheduled outages and will invoice the City for such
amount in accordance with Section 8.2.
Section 10.5 Performance Guarantee.
System Owner shall deliver the guaranteed energy production on the terms
and subject to the conditions set forth in Exhibit E (as may be updated by
System Owner as described therein).
Section 10.6 Extended System Outage.
In the event System Owner must suspend, reduce or discontinue the delivery
of Electricity to the City for a continuous period of fifteen (15) calendar days
or more (an “Extended Outage”), including but not limited to as a result of an
Emergency, Force Majeure Event, or System Outage, System Owner shall
promptly (but not more than five (5) days after System Owner has knowledge
of or reasonably expects an Extended Outage) provide written notice to the
City setting forth (i) the reason for such Extended Outage, (ii) an estimate of
the expected duration of the interruption , and (iii) the measures that System
Owner has taken or will take in order to minimize the duration and scope of
any such Extended Outage. Every two weeks thereafter, or more frequently
as reasonably requested by the City, System Owner shall submit a report to
the City detailing the measures System Owner has taken to resume delivery
of Electricity to the City and the anticipated date on which delivery of
Electricity shall resume. Provider shall diligently pursue a cure to such
Extended Outage and shall take all steps necessary in accordance with
standard industry practices to minimize the duration and scope of any such
Extended Outage.
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ARTICLE 11
REPRESENTATIONS
Section 11.1 Mutual Representations.
The Parties make the following mutual representations and warranties:
Section 11.1.1 Due Organization.
Each Party represents that it is duly organized, validly existing and in good
standing under the laws of its respective formation.
Section 11.1.2 Due Authorization.
Each Party represents that it is duly authorized and has the power to enter
into this Agreement and perform its obligations hereunder.
Section 11.1.3 No Consent Required.
Each Party represents that it has all the rights required to enter into this
Agreement and perform its obligations hereunder without the consent of any
third party, including any Mortgagee.
Section 11.1.4 Accuracy of Information.
The information provided pursuant to this Agreement as of the Effective Date
is true, correct and complete in all material respects.
Section 11.2 Additional City Representations.
The City makes the following additional representations and warranties to
System Owner:
Section 11.2.1 No Conflict.
This Agreement is enforceable against the City in accordance with its terms
and, to the best of the City’s knowledge after reasonable review, does not
conflict with or violate the terms of any other agreement to which the City is
a party or by which the City is bound, including, if applicable, the City’s
organizational documents and any agreement pursuant to which the City has
financed the Premises or the Site. This includes any agreement with an
Alternative Retail Electric Supplier (as defined in 220 ILCS 5/16-102) or an
Agent, Broker, or Consultant (as defined in 220 ILCS 5/16-115C).
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Section 11.2.2 Ownership and Control over Premises.
The City has sole authority to authorize construction and operation of all
components of System.
Section 11.2.3 Swimming Pool.
No Electricity generated by the System will be used to heat a swimming pool.
Section 11.3 Additional System Owner Representations.
System Owner makes the following additional representations and warranties
to the City:
Section 11.3.1 No Conflict.
This Agreement is enforceable against System Owner in accordance with its
terms and does not conflict with or violate the terms of any other agreement
to which System Owner is a party or by which System Owner is bound,
including its organizational documents.
Section 11.3.2 Ability to Perform.
System Owner has no knowledge of any facts or circumstances that, but for
the passage of time, would materially adversely affect System Owner’s ability
to perform its obligations hereunder.
Section 11.3.3 Delivery of Output.
System Owner will deliver to the City the Output free and clear of all liens,
security interests, claims and encumbrances, or any interest therein, or
thereto, by any Person.
Section 11.3.4 Services.
System Owner represents and warrants that: (1) System Owner possesses
and will keep in force all required licenses to perform the Services; (2) the
employees of System Owner performing the Services are fully qualified,
licensed as required, and skilled to perform the Services.
System Owner shall perform all services in a professional and workmanlike
manner. All services performed and documentation (regardless of format)
provided by System Owner shall be in accordance with the standards of
reasonable care and skill of the profession, free from errors or omissions,
ambiguities, coordination problems, and other defects. System Owner shall
take into account any and all applicable plans and/or specifications furnished
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by the City, or by others at the City’s direction or request, to System Owner
during the term of this Agreement. All materials, buildings, structures, or
equipment designed or selected by System Owner shall be workable and fit
for the intended use thereof, and will comply with all applicable
governmental requirements. System Owner shall require its employees to
observe the working hours, rules, security regulations and holiday schedules
of the City while working and to perform its Services in a manner which does
not unreasonably interfere with the City’s business and operations, or the
business and operations of other tenants and occupants which may be
affected by the work relative to this Agreement. System Owner shall take all
necessary precautions to assure the safety of its employees who are engaged
in the performance of the Services, all equipment and supplies used in
connection therewith, and all property of the City or other parties that may
be affected in connection therewith. If requested by the City, System Owner
shall promptly replace any employee or agent performing the Services if, in
the opinion of the City, the performance or behavior of the employee or
agent is unsatisfactory.
System Owner is responsible for conforming its final work product to
generally accepted professional standards for all work performed pursuant to
this Agreement. Nothing in this Agreement accords any third-party
beneficiary rights whatsoever to any non-party to this Agreement that any
non-party may seek to enforce. System Owner acknowledges and agrees that
should System Owner or its subcontractors provide false information, or fail
to be or remain in compliance with this Agreement; the City may void this
Agreement.
Section 11.3.5 If the System Owner sub-contracts any of the services to be
performed under this Agreement, the System Owner shall be responsible for
the accuracy and quality of any sub-contractor’s work.
All sub-contractor agreements shall include verbatim or by reference the
provisions in this Agreement binding upon System Owner as to all Services
provided by this Agreement, such that it is binding upon each and every sub -
contractor that does work or provides Services under this Agreement.
System Owner shall not assign all or any part or its rights or obligations
hereunder without the City’s express prior written approval. Any attempt to
do so without the City’s prior consent shall, at the City’s option, be null and
void and of no force or effect whatsoever. System Owner shall not employ,
contract with, or use the services of any other architect, interior designer,
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engineer, System Owner, special contractor, or other third party in
connection with the performance of the Services without the prior written
consent of the City. For the absence of doubt, the restrictions set forth in this
Section 11.3.5 shall not be applicable to an assignment by System Owner in
accordance with Section 18.3.2 and shall be subject in all respects to Article
19.
Section 11.3.6 The System Owner shall cooperate fully with the City, other
the City contractors, other municipalities and local government officials,
public utility companies, and others, as may be directed by the City. This shall
include attendance at meetings, discussions and hearings as requested by the
City. This cooperation shall extend to any investigation, hearings or meetings
convened or instituted by the City, any of its departments, and/or OSHA
relative to this Project, as necessary. System Owner shall use best efforts to
cooperate with the City in scheduling and performing its Work to avoid
conflict, delay in or interference with the work of others, if any, at the
Project.
Section 11.3.7 System Owner acknowledges and agrees that should the
System Owner or its sub-contractor knowingly and materially provide false
information the City may terminate this Agreement.
Section 11.3.8 System Owner certifies that it and its employees will comply
with applicable provisions of the U.S. Civil Rights Act, Section 504 of the
Federal Rehabilitation Act, the Americans with Disabilities Act (42 U.S.C.
Section 1201 et seq.) and applicable rules in performance under this
Agreement.
Section 11.3.9 If System Owner, or any officer, director, partner, or other
managerial agent of System Owner, has been convicted of a felony under the
Sarbanes-Oxley Act of 2002, or a Class 3 or Class 2 felony under the Illinois
Securities Law of 1953, System Owner certifies at least five years have passed
since the date of the conviction.
Section 11.3.10 System Owner certifies that it has not been convicted of the
offense of bid rigging or bid rotating or any similar offense of any State in the
U.S., nor made any admission of guilt of such conduct that is a matter of
record. (720 ILCS 5/33 E-3, E-4).
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Section 11.3.11 In accordance with the Steel Products Procurement Act,
System Owner certifies steel products used or supplied in the performance of
a contract for public works shall be manufactured or produced in the U.S.
unless the City grants an exemption.
Section 11.3.12 System Owner certifies that it is properly formed and an
existing legal entity, and as applicable, has obtained an assumed name
certificate from the appropriate authority, or has registered to conduct
business in Illinois and is in good standing with the Illinois Secretary of State.
Section 11.3.13 System Owner certifies that it is not delinquent in the
payment of any fees, fines, damages, or debts to the City of Evanston.
Section 11.3.14 Equal Employment Opportunity
In the event of the System Owner’s noncompliance with any provision of
Section 1-12-5 of the Evanston City Code, the Illinois Human Rights Act or any
other applicable law, the System Owner may be declared non -responsible
and therefore ineligible for future contracts or sub -contracts with the City,
and the contract may be canceled or voided in whole or in part, and such
other sanctions or penalties may be imposed or remedies invoked as
provided by statute or regulation.
During the performance of the contract, the System Owner agrees as follows:
(1) That it will not discriminate against any employee or applicant
for employment because of race, color, religion, sex, sexual orientation,
marital status, national origin or ancestry, or age or physical or mental
disabilities that do not impair ability to work, and further that it will examine
all job classifications to determine if minority persons or women are
underutilized and will take appropriate affirmative action to rectify any such
underutilization. System Owner shall comply with all requirements of City of
Evanston Code Section 1-12-5.
(2) That, in all solicitations or advertisements for employees
placed by it on its behalf, it will state that all applicants will be afforded equal
opportunity without discrimination because of race, color, religion, sex,
sexual orientation, marital status, national origin, ancestry, or disability.
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Section 11.3.15 Sexual Harassment Policy
The System Owner certifies pursuant to the Illinois Human Rights Act (775
ILCS 5/2105 et. seq.), that it has a written sexual harassment policy that
includes, at a minimum, the following information:
(1) The illegality of sexual harassment;
(2) The definition of sexual harassment under State law;
(3) A description of sexual harassment utilizing examples;
(4) The System Owner’s internal complaint process including penalties;
(5) Legal recourse, investigation and complaint process available through
the Illinois Department of Human Rights and the Human Rights
Commission, and directions on how to contact both; and
(6) Protection against retaliation as provided to the Department of
Human Rights.
Section 11.3.16 Compliance with Applicable Statutes, Ordinances and
Regulations.
In performing the Services, System Owner shall comply with all applicable
federal, state, county, and municipal statutes, ordinances and regulations, at
System Owner’s sole cost and expense, except to the extent expressly
provided to the contrary herein. Whenever the City deems it reasonably
necessary for security reasons, the City may conduct at its own expense,
criminal and driver history background checks of System Owner’s officers,
employees, sub-contractors, or agents, solely to the extent such officers,
employees, sub-contractors or agents are directly engaged in work for the
City. System Owner shall immediately reassign any such individual who in the
opinion of the City does not pass the background check.
Section 11.3.17 Liens and Encumbrances.
System Owner, for itself, and on behalf of all sub-contractors, suppliers,
materialmen and others claiming by, through or under System Owner, hereby
waives and releases any and all statutory or common law mechanics’
materialmen’s’ or other such lien claims, or rights to place a lien upon the
City property or any improvements thereon in connection with any Services
performed under or in connection with this Agreement. System Owner
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further agrees, as and to the extent of payment made hereunder, to execute
a sworn affidavit respecting the payment and lien releases of all sub-
contractors, suppliers and materialmen, and a release of lien respecting the
Services at such time or times and in such form as may be reasonably
requested by the City. System Owner shall protect the City from all liens for
labor performed, material supplied or used by System Owner and/or any
other person in connection with the Services undertaken by System Owner
hereunder, and shall not at any time suffer or permit any lien or attachment
or encumbrance to be imposed by any sub -contractor, supplier or
materialmen, or other person, proposer or corporation, upon the City
property or any improvements thereon, by reason or any claim or demand
against System Owner or otherwise in connection with the Services.
ARTICLE 12
COVENANTS OF THE PARTIES
Section 12.1 Permits.
During the Term, System Owner shall obtain and maintain in effect all
Permits, approvals, and other authorizations that may be required by any
governmental agency or authority or by the Host Utility in connection with
the interconnection and operation of the System. Those permits include, but
are not limited to:
• Construction permits;
• Certification of all entities (including, as applicable, System Owner or any
subcontractors) pursuant to 83 Ill. Admin. Code Part 468 as Distributed
Generation Installers to the extent required under Part 468 and 220 ILCS
5/16-128A;
• Enrollment in the Net Metering program pursuant to 83 Ill. Admin. Code
Part 465 of the Host Utility or Electricity Provider, as applicable;
Section 12.2 Compliance.
During the Term, the applicable Party, as described in Section 12.1, (a) shall
comply with, maintain in effect, and promptly notify the other Party of any
change in status to, all such Permits, approvals, and authorizations; (b) shall
maintain the Interconnection and Net Metering Agreements; and (c) shall
meet all requirements imposed by the Host Utility, Electricity Provider (if
different), and any federal, state or local government agencies with respect
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to the Interconnection and Net Metering Agreements and to the sale and
purchase of the Output.
Section 12.3 Upgrades.
The City shall perform (or arrange for the performance of) all normal
maintenance and upgrades to the Site Electrical System to maintain the Site
Electrical System in good working order, and such other maintenance and
upgrades as may be required by the Host Utility or applicable laws,
regulations, ordinances, and codes.
ARTICLE 13
DEFAULT; LENDER CURE RIGHTS
Section 13.1 Events of Default.
An “Event of Default” means, with respect to a Party (a “Defaulting Party”),
the occurrence of any of the following:
Section 13.1.1 Emergency Termination.
In the event of an emergency or threat to the life, safety or welfare of the
citizens of the City of Evanston directly caused by the System, the City shall
have the right to terminate this Agreement without prior written notice and
such termination shall not be considered an Event of Default.
Section 13.1.2 The City’s Failure to Comply.
The City’s failure to comply with the provisions of the Local Government
Prompt Payment Act, 50 ILCS 505/1.
Section 13.1.3 Material Misrepresentation as of Effective Date.
If the representations and warranties and other statements made by a Party
hereunder or as part of the bidding process misrepresent a material fact as of
the Effective Date, and such misrepresentation has a material adverse effect
and such effect is not cured within thirty (30) days from the earlier of (a)
notice from the Non-Defaulting Party or (b) the discovery or determination by
the Defaulting Party of the misrepresentation; except that if the Defaulting
Party commences an action to cure such misrepresentation within such sixty
(60)-day period, and thereafter proceeds with all due diligence to cure such
failure, the cure period shall extend for an additional sixty (60) days.
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Section 13.1.4 Failure to Meet Material Obligations.
Except as otherwise expressly set out in this Article 13, if a Party fails to
perform fully any material provision of this Agreement and either (a) such
failure continues for a period of thirty (30) days after written notice of such
nonperformance or (b) if the Defaulting Party commences an action to cure
such failure to perform within such sixty (60-) day period, and thereafter
proceeds with all due diligence to cure such failure, and such failure is not
cured within sixty (60) days after the expiration of the initial sixty (60)-day
period.
Section 13.2 Remedies for Event of Default.
If at any time an Event of Default with respect to a Defaulting Party has
occurred and is continuing, the other Party (“Non-Defaulting Party”) shall,
without limiting the rights or remedies available to the Non-Defaulting Party
under this Agreement, applicable law or in equity, have the right: (a) by
notice to the Defaulting Party, to designate a date, not earlier than the date
of such notice and not later than thirty (30) Business Days after such date, as
an early termination date (“Early Termination Date”) in respect of this
Agreement; (b) to withhold any payments due to the Defaulting Party under
this Agreement until such Event of Default is resolved; and (c) to suspend
performance due to the Defaulting Party under this Agreement until such
Event of Default is resolved. If the Non-Defaulting Party designates an Early
Termination Date, this Agreement will terminate as of the Early Termination
Date. Any City remedies in the event of a System Owner default are subject to
Lender cure rights as set forth in Section 19.3.
Section 13.3 Additional City Rights Upon Termination for Default.
If the City is the Non-Defaulting Party, and the City elects to terminate this
Agreement as provided in Section 13.2, the City shall be entitled, in its sole
and absolute discretion, either to (a) require that System Owner remove and
properly dispose of the System and System Assets, including any and all
related equipment and materials, at System Owner’s sole cost and expense
(or to remove and have stored the System at System Owner’s sole cost and
expense, if System Owner fails to commence to remove the System within
sixty (60) days after the Early Termination Date), or (b) exercise the Purchase
Option provided in Article 15.
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Section 13.4 No Cross Default.
The Parties acknowledge and agree that any default by a party to the Site
Lease Agreement shall not constitute an Event of Default under this
Agreement, and that any such default under the Site Lease Agreement shall
be addressed according to the terms of the Site Lease Agreement.
Section 13.5 Remedy.
The City does not waive any right to exercise any option to cure any breach or
default on the part of System Owner or its subcontractors, including but not
limited to injunctive relief, an action in law or equity or termination of this
Agreement as outlined in this Section pertaining to Default/Cure.
ARTICLE 14
FORCE MAJEURE
Section 14.1 Force Majeure.
Neither System Owner nor the City shall be considered to be in default in the
performance of its obligations under this Agreement to the extent that
performance of any such obligation is prevented or delayed by a Force
Majeure Event. If a Party is prevented or delayed in the performance of any
such obligation by a Force Majeure Event, then such Party shall immediately
provide notice to the other Party of the circumstances preventing or delaying
performance and the expected duration thereof. Receipt of such notice shall
be confirmed in writing as soon as reasonably possible. The Party whose work
is prevented or delayed by a Force Majeure Event shall use commercially
reasonable efforts to remove or repair the cause of the Force Majeure Event
and shall resume performance of its obligations as soon as reasonably
practicable.
ARTICLE 15
PURCHASE OPTION; EXPIRATION
Section 15.1 The City’s Purchase Option.
For and in consideration of the payments made by the City under this
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the Parties, System Owner
hereby grants the City the right and option to purchase all of System Owner’s
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right, title and interest in and to the System and System Assets at Fair Market
Value, as defined below, on the terms set forth in this Article 15 (the
“Purchase Option”). The Purchase Option is irrevocable by System Owner
and may be exercised by the City as follows: (a) at the conclusion of the Term,
including any Extension Period; (b) on the sixth (6th), tenth (10th) or
fourteenth (14th) anniversary of the Commercial Operation Date; or (c) as an
additional remedy in the Event of Default by System Owner, as described in
Section 13.3.
Section 15.2 Purchase Price.
The price payable by the City for the System and System Assets upon
execution of the Purchase Option shall be equal to the “Fair Market Value,”
which shall be determined in an arm’s-length transaction between the Parties
pursuant to which the City shall be under no compulsion to purchase the
System or the System Assets; or, if no agreement is reached between the
Parties, as such Fair Market Value is determined by an Independent Appraisal
pursuant to Section 15.5 (the “Purchase Price”).
Section 15.3 The City’s Request for a Determination of Purchase Price.
No fewer than (a) one hundred eighty (180) days before the end of the Term,
including any Extension Period, or the sixth (6th), tenth (10th) or fourteenth
(14th) anniversary of the Commercial Operation Date; or (b) upon an Event of
Default by System Owner under Article 13, the City shall have the right to
provide a notice to System Owner requiring a determination of the Purchase
Price pursuant to Section 15.4.
Section 15.4 Determination of Purchase Price.
Within thirty (30) days of System Owner’s receipt of a notice provided under
Section 15.3, System Owner and the City shall mutually agree upon a
Purchase Price for the System and System Assets, an Independent Appraisal
shall be obtained pursuant to Section 15.5 to determine the Purchase Price at
the discretion of either party.
Section 15.5 Independent Appraiser to Determine the Purchase Price.
Section 15.5.1 Selection of Independent Appraiser.
No more than ten (10) days following agreement to obtain an Independent
Appraisal, the Parties shall agree upon the identity of an independent
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appraiser to determine the Fair Market Value of the System and System
Assets (the “Independent Appraiser”).
Section 15.5.2 Preliminary Determination.
The Independent Appraiser shall make a preliminary determination of the
Fair Market Value of the System and System Assets (the “Preliminary
Determination”).
Section 15.5.3 Final Determination.
The Independent Appraiser shall provide such Preliminary Determination to
System Owner and the City, together with all supporting documentation
detailing the calculation of the Preliminary Determination. The System
Owner and the City shall have the right to object to the Preliminary
Determination within ten (10) days of receiving such Preliminary
Determination. Within ten (10) Business Days after (i) receiving any such
notice of objection to the Preliminary Determination or (ii) receiving no such
notice of objection to the Preliminary Determination, the Independent
Appraiser shall issue the Independent Appraiser’s final determination (“Final
Determination”) to System Owner and the City, which shall specifically
address any objections received by the Independent Appraiser and whether
such objections were taken into account in making the Final Determination.
Except in the case of fraud or manifest error, the Final Determination of the
Independent Appraiser shall be final and binding on the Parties.
Section 15.6 Costs and Expenses of Independent Appraisal.
If an Independent Appraisal is requested by the City, then the City shall be
responsible for payment of the costs and expenses associated with obtaining
the Independent Appraisal. If an Independent Appraisal is requested by the
System Owner, then the System Owner shall be responsible for payment of
the costs and expenses of any Independent Appraiser engaged by the Parties.
Section 15.7 Exercise of Purchase Option.
The City shall exercise the Purchase Option, at the Purchase Price set forth in
the Final Determination or as mutually agreed upon by the Parties, within
ninety (90) Business Days after the date of the Final Determination, or, if the
City and System Owner have mutually agreed upon a Purchase Price, the date
that the Parties agree upon a Purchase Price (such period, the “Exercise
Period”). The City must exercise its Purchase Option during the Exercise
Period by providing a notice (an “Exercise Notice”) to the System Owner.
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Once the City delivers its Exercise Notice to the System Owner, such exercise
shall be irrevocable.
Upon at least three (3) Business Days’ prior written notice from the City at
any time during the Exercise Period, System Owner shall make the System,
including records relating to the operations, maintenance, and warranty
repairs, available to the City for its inspection during normal business hours.
Section 15.8 Transfer Date.
The closing of any sale of the System and System Assets (the “Transfer Date”)
pursuant to this Article will occur no later than thirty (30) Business Days
following the date on which the City provides its Exercise Notice. With the
exception of any provisions that expressly survive termination of this
Agreement, System Owner’s duties and obligations under this Agreement
shall terminate on the Transfer Date.
Section 15.9 Terms of System Purchase.
On the Transfer Date: (a) System Owner shall surrender and transfer to the
City all of System Owner’s right, title, and interest in and to the System and
System Assets as of the Transfer Date, free and clear of any Liens, and shall
retain all liabilities arising from or related to the System and System Assets
before the Transfer Date; (b) the City shall pay the Purchase Price and shall
assume all liabilities arising from or related to the System from and after the
Transfer Date; and (c) both Parties shall (i) execute and deliver a bill of sale
and assignment of warranties, together with such other conveyance and
transaction documents as are reasonably required to fully transfer and vest
title to the System and System Assets in the City, and (ii) deliver ancillary
documents, including releases, resolutions, certificates, third-party consents
and approvals and such similar documents as may be reasonably necessary to
complete the sale of the System and System Assets to the City. Upon such
execution and delivery of the foregoing documents and payments, this
Agreement will terminate, and the City will own the System, System Assets,
and all Environmental Financial Incentives and Green Attributes relating to
the System.
Section 15.10 System Removal at Expiration.
If the City does not exercise its Purchase Option, then at the end of the Term,
as may be extended pursuant to Section 2.1.2, System Owner shall remove
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the System and System Assets from the Premises at System Owner’s expense
within one hundred twenty (120) days after the expiration of the Term. Upon
removal, System Owner shall endeavor to reuse or recycle any System
materials and Assets to the extent possible and to the best of its abilities. To
the extent that System Owner removes any or all of the System and System
Assets, System Owner shall make or have made any repairs to the Premises
to the extent necessary to repair any adverse impact such removal directly
causes to the Premises.
ARTICLE 16
LIABILITY; INDEMNIFICATION
Section 16.1 System Owner.
System Owner shall defend, indemnify and hold harmless the City and its
officers, elected and appointed officials, agents, and employees from any and
all liability, losses, or damages as a result of claims, demands, suits, actions,
or proceedings of any kind or nature, including but not limited to costs, and
fees, including attorney’s fees, judgments or settlements, resulting from or
arising out of any negligent or willful act or omission on the part of the
System Owner or System Owner’s sub-contractors, employees, agents or
subcontractors during the performance of this Agreement. Such
indemnification shall not be limited by reason of the enumeration of any
insurance coverage herein provided. This provision shall survive completion,
expiration, or termination of this Agreement.
System Owner further agrees to pay the City for the reasonable costs and
expenses directly relating to the breach of any representation, warranty, or
covenant of System Owner hereunder. System Owner further agrees to pay
for the reasonable costs and expenses, exclusive of consequential damages,
of any repairs to or loss of the Premises or the City’s personal property or
fixtures on the Premises, to the extent resulting from negligence or
intentional misconduct of System Owner or any of its contractors, second -tier
contractors, agents, employees, partners, owners, subsidiaries or affiliates.
System Owner shall be responsible for any losses and costs to repair or
remedy work performed under this Agreement resulting from or arising out
of any negligent act or intentional omission, neglect, or misconduct in the
performance of its work or its subcontrator’s work. Acceptance of the work
by the City will not relieve the System Owner of the responsibility for
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subsequent correction of any such error, omissions and/or negligent acts or
of its liability for loss or damage resulting therefrom. All provisions of this
Section shall survive completion, expiration, or termination of this
Agreement.
Section 16.2 The City.
The City shall defend, indemnify and hold harmless the System Owner and its
directors, officers, shareholders, partners, members, agents, employees and
affiliates from any and all liability, losses, or damages as a result of claims,
demands, suits, actions, or proceedings of any kind or nature, made by a third
party, including but not limited to costs, and fees, including attorney’s fees,
judgments or settlements, resulting from or arising out of any negligent or
willful act or omission on the part of the City or the City’s officers, elected and
appointed officials, agents, and employees during the performance of this
Agreement. Such indemnification shall not be limited by reason of the
enumeration of any insurance coverage herein provided. This provision shall
survive completion, expiration, or termination of this Agreement.
The City agrees to pay the System Owner for the reasonable costs and
expenses directly relating to the breach of any representation, warranty, or
covenant of the City hereunder. The City further agrees to pay for the
reasonable costs and expenses of any repairs to, or loss of, the System,
exclusive of consequential damages, to the extent such repairs arise out of
the negligent or willful act or omission on the part of the City or the City’s
officers, elected and appointed officials, agents, and employees during the
performance of this Agreement.
Section 16.3 Defense of Claims.
An indemnified party shall give the indemnifying party written notice with
respect to any claim, action or suit (a “Claim”) asserted by a third party as
soon as possible upon the receipt of information of any possible Claim. The
indemnifying party shall have no liability under this Section 16.3 for any Claim
for which such notice is not provided if that failure to give notice prejudices
the indemnifying party. The indemnifying party shall assume defense of any
Claim, at its sole cost and expense, with counsel designated by the
indemnifying party and reasonably satisfactory to the indemnified party.
Nothing contained herein shall be construed as prohibiting the indemnified
party from defending through the selection and use of their own agents,
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attorneys, and experts, any claims, actions or suits brought against them if
the indemnifying party fails to assume the defense of the Claim within a
reasonable time. Nothing herein shall be construed as a limitation or waiver
of defenses available to the City and employees and agents, including but not
limited to the Illinois Local Governmental and Governmental Employees Tort
Immunity Act, 745 ILCS 10/1-101 et seq.
The indemnified party has the right, at its option, to participate, at its own
cost, in the defense of any suit, without relieving the indemnifying party of
any of its obligations under this Agreement. Any settlement of any claim or
suit related to this Agreement must be made only with the prior written
consent of the other party, such consent not to be unreasonably withheld or
delayed.
ARTICLE 17
INSURANCE
Section 17.1 System Owner Insurance.
System Owner shall carry and maintain at its own cost with such companies
as are reasonably acceptable to the City all necessary liability insurance
(which shall include as a minimum the requirements set forth below) during
the term of this Agreement, for damages caused or contributed to by System
Owner, and insuring System Owner against claims which may arise out of or
result from System Owner’s performance or failure to perform the Services
hereunder: (1) worker’s compensation in statutory limits and employer’s
liability insurance in the amount of at least $500,000, (2) comprehensive
general liability coverage, and designating the City as additional insured for
not less than $3,000,000 combined single limit for bodily injury, death and
property damage, per occurrence, provided that foregoing limits may be
satisfied through a combination of primary and excess policies (3)
comprehensive automobile liability insurance covering owned, non -owned
and leased vehicles for not less than $1,000,000 combined single limit for
bodily injury, death or property damage, per occurrence, and (4) errors and
omissions or professional liability insurance respecting any insurable
professional services hereunder in the amount of at least $1,000,000,
provided that such professional liability insurance may be carried by a
subcontractor providing insurable professional services and shall be required
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solely to the extent and for such time as System Owner or a subcontractor is
actively engaged in insurable professional services to be provided hereunder .
System Owner shall give to the City certificates of insurance for all Services
done pursuant to this Agreement before System Owner performs any
Services, and, if requested by the City, certified copies of the policies of
insurance evidencing the coverage and amounts set forth in this Section. The
City may also require System Owner to provide copies of the Additional
Insured Endorsement to said policy (ies) which name the City as an Additional
Insured for all of System Owner’s Services and work under this Agreement.
Any limitations or modification on the certificate of insurance issued to the
City in compliance with this Section that conflict with the provisions of this
Section shall have no force and effect. System Owner’s certificate of
insurance shall contain a provision that the coverage afforded under the
policy(s) will not be canceled or reduced without thirty (30) days prior written
notice (hand delivered or registered mail) to the City. System Owner
understands that the acceptance of certificates, policies and any other
documents by the City in no way releases the System Owner and its sub -
contractors from the requirements set forth herein. System Owner expressly
agrees to waive its rights, benefits and entitlements under the “Other
Insurance'' clause of its commercial general liability insurance policy as
respects the City. In the event System Owner fails to purchase or procure
insurance as required above, the parties expressly agree that System Owner
shall be in default under this Agreement, and that the City may recover all
losses, attorney’s fees and costs expended in pursuing a remedy or
reimbursement, at law or in equity, against System Owner.
System Owner acknowledges and agrees that if it fails to comply with all
requirements of this Section, that the City may terminate this Agreement
pursuant to Section 13.2 above.
Section 17.2 City Insurance.
The City is self-insured up to an amount of $1.25 million and shall carry and
maintain at its own cost excess liability insurance with a limit of $5,000,000
per occurrence. Upon System Owner’s written request, the City shall deliver
to System Owner certificates of insurance evidencing the above required
coverage.
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ARTICLE 18
SYSTEM RELOCATION; ASSIGNMENT
Section 18.1 System Relocation.
If the City ceases to conduct operations at or vacates the Premises before the
expiration of the Term, then upon not fewer than one hundred twenty (120)
days’ prior written notice, the City shall have the option to provide System
Owner with a mutually agreeable substitute premises located within the
same Host Utility territory as the Premises. In connection with such
substitution, this Agreement will be amended to reflect the substitute
premises. The City shall pay all costs associated with relocation of the System,
including but not limited to all costs and expenses incurred by or on behalf of
System Owner in connection with removal of the System from the Premises,
and installation and testing of the System at the substitute premises and all
applicable interconnection fees and expenses. System Owner shall remove
the System from the vacated Premises before the termination of the City’s
ownership, lease or other rights to use such Facility.
Section 18.2 Assignment by the City.
The City shall not assign this Agreement or delegate the City’s duties and
obligations hereunder without the consent of System Owner, which consent
not to be unreasonably withheld. Without limiting the generality of the
foregoing, in connection with any conveyance by the City of any interest in
Premises that impacts (i) the Interconnection Agreement, (ii) rights or access
to the System or System Assets, or (iii) ownership or operation of the City’s
electric system excluding the System, the City may (a) assign this Agreement
to the fee purchaser of the Premises, pursuant to an assignment and
assumption agreement reasonably acceptable to System Owner; or (b) if such
sale and conveyance occurs after the sixth (6th) anniversary of the
Commercial Operations Date, purchase the System pursuant to Article 15.
Section 18.3 Assignment by System Owner.
Section 18.3.1
Subject to Section 18.3.2, System Owner may, with the consent of the City
(which consent shall not be unreasonably withheld), assign its interest in, and
be released from its obligations under, this Agreement to an assignee, as long
as the assignee shall expressly assume this Agreement and agree to be bound
by the terms and conditions hereof.
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Section 18.3.2
System Owner may, without the consent of the City, (a) transfer, pledge or
assign all or substantially all of its rights and obligations hereunder as security
for any financing and/or sale leaseback transaction or to an affiliated special
purpose entity created for the financing or tax credit purposes related to the
System, (b) transfer or assign this Agreement to any Person or entity
succeeding to all or substantially all of the assets of System Owner; provided,
however, that any such assignee shall agree to be bound by the terms and
conditions hereof, (c) assign this Agreement to one or more affiliates;
provided, however, that any such assignee shall agree to be bound by the
terms and conditions hereof or (d) assign its rights under this Agreement to a
successor entity in a joint venture, merger or acquisition transaction;
provided, however, that any such assignee shall agree to be bound by the
terms and conditions hereof. The City agrees to provide acknowledgements,
consents, or certifications reasonably requested by any Lender in conjunction
with any financing.
ARTICLE 19
LENDER PROTECTION
Section 19.1 Notice of Lender.
System Owner shall notify the City of the identity of any Lender within thirty
(30) days of any such party becoming a Lender and shall deliver to the City all
applicable contact information for such Lender.
Section 19.2 Lender Collateral Assignment.
Upon notice and delivery by System Owner pursuant to Section 19.1 of the
name and contact information for any Lender, then the City hereby:
Section 19.2.1
Acknowledges the collateral assignment by System Owner to the Lender, of
System
Owner’s right, title and interest in, to and under this Agreement, as
consented to under Section 19.2.2;
Section 19.2.2
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Acknowledges that any Lender as such collateral assignee shall be entitled to
exercise any and all rights of lenders generally with respect to System
Owner’s interests in this Agreement;
Section 19.2.3
Acknowledges that it has been advised that System Owner has granted a
security interest in the System to the Lender and that the Lender has relied
upon the characterization of the System as personal property, as agreed in
this Agreement, in accepting such security interest as collateral for its
financing of the System; and
Section 19.2.4
Acknowledges that any Lender shall be an intended third-party beneficiary of
this Article 19.
Section 19.2.5
Any security interest filing by Lender shall not create any interest in or lien
upon the Premises underlying the System Assets or the interest of the City
therein and shall expressly disclaim the creation of such an interest or a lien.
Section 19.3 Lender Cure Rights Upon System Owner Default.
Upon an Event of Default by System Owner, the City shall deliver to each
Lender of which it has notice a copy of any notice of default delivered under
Section 13.1. Following the receipt by any Lender of any notice that System
Owner is in default in its obligations under this Agreement, such Lender shall
have the right but not the obligation to cure any such default, and the City
agrees to accept any cure tendered by the Lenders on behalf of System
Owner in accordance with the following: (a) a Lender shall have the same
period after receipt of a notice of default to remedy an Event of Default by
System Owner, or cause the same to be remedied, as is given to System
Owner after System Owner’s receipt of a notice of default hereunder. The
Lender shall have the absolute right to substitute itself or an affiliate for
System Owner and perform the duties of System Owner hereunder for
purposes of curing such Event of Default. the City solely expressly consents to
such substitution, and authorizes the Lender, its affiliates (or either of their
employees, agents, representatives or contractors) to enter upon the
Premises to complete such performance with all of the rights and privileges
of System Owner, but subject to the terms and conditions of this Agreement.
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ARTICLE 20
MISCELLANEOUS
Section 20.1 Governing Law; Jurisdiction; Dispute Resolution; Waiver of
Jury Trial
Section 20.1.1 Governing Law.
The rights and duties arising under this Agreement shall be governed by the
laws of the State of Illinois. Venue for any action arising out or due to this
Agreement shall be in Cook County, Illinois. The City shall not enter into
binding arbitration to resolve any dispute under this Agreement. The City
does not waive tort immunity by entering into this Agreement.
Section 20.1.2 Jurisdiction.
The Parties hereby consent and submit to the personal jurisdiction of the
Circuit Court of Cook County, Illinois.
Section 20.2 Notices.
Any written notice, direction, instruction, request or other communication
required or permitted under this Agreement shall be deemed to have been
duly given on the date of receipt, and shall be delivered to the Party to whom
notice is to be given (a) personally, (b) by electronic mail (receipt
acknowledgment), (c) by a recognized overnight delivery service or (d) by first
class registered or certified mail, return receipt requested, postage prepaid
(with additional notice by regular mail), and addressed to the to the Party to
whom notice is to be given at the address stated below its name below, or at
the most recent address specified by written notice given to the other Party
in the manner provided in this Section 20.2.
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If to SYSTEM OWNER:
Onyx Development Group
LLC
230 Park Ave Suite 845
New York, NY 10169
OASG@onyxrenewables.c
om
With a copy to System
Owner’s legal
representative:
Onyx Development Group
LLC
ATTN; Legal Department
230 Park ave Suite 845
New York, NY 10169
legal@onyxrenewables.co
m
If to the City:
City of Evanston
ATTN: Luke Stowe,
City Manager
2100 Ridge Avenue
Evanston, IL 60201
citymanagersoffice
@cityofevanston.org
With a copy to the City’s
legal representative:
City of Evanston
ATTN: Corporation
Counsel
2100 Ridge Avenue
Evanston, IL 60201
lawoffice
@cityofevanston.org
Section 20.3 Independent Contractor.
System Owner’s status shall be that of an independent contractor and not
that of a servant, agent, or employee of the City. The System Owner shall not
hold itself out, nor claim to be acting, as a servant, agent or employee of the
City. System Owner is not authorized to, and shall not, make or undertake
any agreement, understanding, waiver or representation on behalf of the
City. System Owner shall at its own expense comply with all applicable
workers compensation, unemployment insurance, employer’s liability, tax
withholding, minimum wage and hour, and other federal, state, county and
municipal laws, ordinances, rules, regulations and orders. System Owner shall
require its employees to observe the working hours, rules, security
regulations and holiday schedules of the City, including but not limited to all
policies and work rules applicable to the City employees while on the City
property such as the Workplace Harassment Policy; COVID-19 Vaccination
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Policy; and Drug and Alcohol Policy. System Owner agrees to abide by the
Occupational Safety & Health Act of 1970 (OSHA), and as the same may be
amended from time to time, applicable state and municipal safety and health
laws and all regulations pursuant thereto. System Owner shall certify that its
agents, employees and subcontractors are in compliance with the City work
rules applicable to the City employees while on the City property. Failure to
certify or violation of work rules is subject to the Default provisions of this
Agreement.
Section 20.4 Conflict of Interest.
System Owner represents and warrants that no prior or present services provided by System
Owner to third parties conflict with the interests of the City in respect to the Services being
provided hereunder except as shall have been expressly disclosed in writing by System Owner
to the City and consented to in writing to the City.
Section 20.5 Review of Documents and Other Materials.
During the Term, the City shall have the right to review and inspect all originals, duplicates and
negatives of all plans, drawings, reports, photographs, charts, programs, models, specimens,
specifications, AutoCAD Version 2023, Excel spreadsheets, PDF, and other documents or
materials required to be furnished by System Owner hereunder, including drafts and
reproduction copies thereof. The City shall not publish, transfer, license or, except in
connection with carrying out obligations under this Agreement, use or reuse all or any part of
such reports and other documents, including working pages, without the prior written approval
of the System Owner.
Section 20.6 Right to Audit.
System Owner shall for a period of three years following performance of the Services, keep and
make available for the inspection, examination and audit by the City or the City’s authorized
employees, agents or representatives, at all reasonable time, all records respecting the services
and expenses incurred by System Owner, including without limitation, all book, accounts,
memoranda, receipts, ledgers, canceled checks, and any other documents indicating,
documenting, verifying or substantiating the cost and appropriateness of any and all expenses ,
provided that the City or its authorized employees, agents or representatives shall not request
to inspect, examine or audit such materials more than twice in any given calendar year . If any
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invoice submitted by System Owner is found to have been overstated, System Owner shall
provide the City an immediate refund of the overpayment together with interest at the highest
rate permitted by applicable law, and shall reimburse all of the City’s expenses for and in
connection with the audit respecting such invoice.
Section 20.7 Confidentiality.
In connection with this Agreement, the City may provide System Owner with information to
enable System Owner to render the Services hereunder, or System Owner may develop
confidential information for the City. System Owner agrees
(1) to treat, and to obligate System Owner’s employees to treat, as secret and confidential all
such information whether or not identified by the City as confidential,
(2) not to disclose any such information or make available any reports, recommendations and
/or conclusions which System Owner may make for the City to any person, proposer or
corporation or use the same in any manner whatsoever without first obtaining the City’s
written approval, and
(3) not to disclose to the City any information obtained by System Owner on a confidential basis
from any third party unless System Owner shall have first received written permission from
such third party to disclose such information.
Pursuant to the Illinois Freedom of Information Act, 5 ILCS 140/7(2), records in the possession
of others whom the City has contracted with to perform a governmental function are covered
by the Act and subject to disclosure within limited statutory timeframes (five (5) working days
with a possible five (5) working day extension). Upon notification from the City that it has
received a Freedom of Information Act request that calls for records within the System Owner’s
control, the System Owner shall promptly provide all requested records to the City so that the
City may comply with the request within the required timeframe. The City and the System
Owner shall cooperate to determine what records are subject to such a request and whether or
not any exemption to the disclosure of such records or part thereof is applicable. System Owner
shall indemnify and defend the City from and against all claims arising from the City’s
exceptions to disclosing certain records which System Owner may designate as proprietary or
confidential. Compliance by the City with an opinion or a directive from the Illinois Public
Access Counselor or the Attorney General under FOIA, or with a decision or order of Court with
jurisdiction over the City, shall not be a violation of this Section.
Section 20.8 Use of the City’s Name or Picture of Property.
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System Owner shall not in the course of performance of this Agreement or thereafter use or
permit the use of the City’s name nor the name of any affiliate of the City, nor any picture of or
reference to its Services in any advertising, promotional or other materials prepared by or on
behalf of System Owner, nor disclose or transmit the same to any other party without express
prior written consent of the City.
Section 20.9 Amendments.
No amendments or modifications of this Agreement shall be valid unless evidenced in writing
and signed by duly authorized representatives of both System Owner and the City or their
respective successors in interest.
Section 20.10 Records.
Each Party hereto shall keep complete and accurate records of its operations hereunder for a
minimum of five (5) years and shall maintain such data as may be necessary to determine with
reasonable accuracy any item relevant to this Agreement. Each Party shall have the right to
examine, at its sole cost, all such records insofar as may be necessary for the purpose of
ascertaining the reasonableness and accuracy of any statements of costs relating to
transactions hereunder.
Section 20.11 Attorney’s Fees.
In the event that the City commences any action, suit, or other proceeding to remedy, prevent,
or obtain relief from a breach of this Agreement by System Owner, or arising out of a breach of
this Agreement by System Owner, the City shall recover from the System Owner as part of the
judgment against System Owner, its attorneys’ fees and costs incurred in each and every such
action, suit, or other proceeding.
Section 20.12 Severability.
In the event that any provision of this Agreement should be held void, or unenforceable, the
remaining portions hereof shall remain in full force and effect.
Section 20.13 Counterpart Execution.
The Parties may execute this Agreement in counterparts, which shall, in the aggregate, when
signed by both Parties constitute one and the same instrument; and, thereafter, each
counterpart shall be deemed an original instrument as against any Party who has signed it. A
fax or scanned transmission of a signature page shall be considered an original signature page.
At the request of a Party, a Party shall confirm its faxed or scanned signature page by delivering
an original signature page to the requesting Party.
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Section 20.14 Service Agreement.
The Parties intend that this Agreement be treated as a “service contract” within the meaning of
Section 7701(e) of the Internal Revenue Code.
Section 20.15 Headings.
The headings in this Agreement have been inserted for the purpose of convenience and ready
reference. They do not purport to, and shall not be deemed to, define, limit, or extend the
scope or intent of the clauses to which they pertain.
Section 20.16 No Waiver.
Any failure or delay by the City to enforce the provisions of this Agreement shall in no way
constitute a waiver by the City of any contractual right hereunder, unless such waiver is in
writing and signed by the City.
Section 20.17 Survival.
Any provisions necessary to give effect to the intent of the Parties hereunder after the
termination or expiration of this Agreement shall survive the termination or expiration of this
Agreement, including but not limited to Section 20.1, Section 20.12 and Article 16.
Section 20.18 Marketing and Confidential Information .
Section 20.18.1
The Parties agree and acknowledge that each Party may promote the installation and use of the
System by any means. All public statements must accurately reflect the rights and obligations
of the Parties under this Agreement, including the ownership of Green Attributes and
Environmental Financial Incentives, and any related reporting rights.
Section 20.18.2
Each Party shall provide to the other Party, in advance of distribution to any Person, a copy of
any marketing or promotional material related to the System.
Section 20.18.3
The City agrees that this Agreement and its performance by both Parties are proprietary and
confidential to System Owner. Without the prior written consent of System Owner, the City
shall not share information provided by System Owner to the City from the Meter, or any other
performance data related to the System with any third parties. the City shall not disclose to any
third parties the terms of this Agreement or costs incurred by either Party under this
Agreement without System Owner’s prior written consent.
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Section 20.18.4
If required by any law, statute, ordinance, decision, order or regulation passed, adopted, issued
or promulgated by a court, governmental agency or authority having jurisdiction over a Party,
that Party may release such confidential information, or a portion thereof, to the court,
governmental agency or authority, as required by applicable law, statute, ordinance, decision,
order or regulation, and a Party may disclose such confidential information to accountants in
connection with audits. Notwithstanding the foregoing, System Owner acknowledges that the
City is a public entity subject to certain public records disclosure statutes and regulations.
System Owner further acknowledges that although the Illinois Freedom of Information Act
recognizes that certain confidential trade secret information may be protected from disclosure,
the City may not be in a position to establish that the information that System Owner provides
as confidential is a trade secret. If a request is made for information marked “Confidential”,
“Trade Secret” or “Proprietary”, the City will provide the System Owner with reasonable notice
to seek protection from disclosure by a court of competent jurisdiction.
Section 20.19 No Confidentiality Regarding Tax Structure or Treatment.
Notwithstanding anything to the contrary set forth herein or in any other agreement to which
the Parties are parties or by which they are bound, the obligations of confidentiality contained
herein and therein, as they relate to the transaction, shall not apply to the U.S. federal tax
structure or U.S. federal tax treatment of the transaction, and each Party (and any employee,
representative, or agent of any Party hereto) may disclose to any and all Persons, without
limitation of any kind, the U.S. federal tax structure and U.S. federal tax treatment of the
transaction. The preceding sentence is intended to cause the transaction not to be treated as
having been offered under conditions of confidentiality for purposes of Section 1.6011 -4(b)(3)
(or any successor provision) of the Treasury Regulations promulgated under Section 6011 of the
Code and shall be construed in a manner consistent with such purpose. In addition, each Party
acknowledges that it has no proprietary or exclusive rights to the tax structure of the
transaction or any tax matter or tax idea related to the transaction.
Section 20.20 Integration.
This Agreement, together with Exhibits attached hereto, sets forth all the covenants, conditions
and promises between the parties with regard to the subject matter set forth herein. There are
no covenants, promises, agreements, conditions or understandings between the parties, either
oral or written, other than those contained in this Agreement. This Agreement has been
negotiated and entered into by each party with the opportunity to consult with its counsel
regarding the terms therein. No portion of the Agreement shall be construed against a party
due to the fact that one party drafted that particular portion as the rule of contra proferentem
shall not apply.
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In the event of any inconsistency between this Agreement, and any Exhibits, this Agreement
shall control over the Exhibits. In no event shall any proposal or contract form submitted by
System Owner be part of this Agreement unless agreed to in a writing signed by both parties
and attached and referred to herein as an Addendum, and in such event, only the portions of
such proposal or contract form consistent with this Agreement and Exhibits hereto shall be part
hereof.
Section 20.21 Time.
System Owner agrees all time limits provided in this Agreement and any Addenda or Exhibits
hereto are of essence to this Agreement. System Owner shall continue to perform its
obligations while any dispute concerning the Agreement is being resolved, unless otherwise
directed by the City.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the duly authorized representatives of each of the Parties have
executed this Agreement, effective as of the Effective Date.
The City:
By:______________________________
Name: Luke Stowe
Title: City Manager
SYSTEM OWNER:
By:________________________________
Name: Patricia L. Rollin
Title: Authorized Signatory
Document ID: 1709a2cb03aefba37c2f32a6dc71ef2130e38e037b346f27e99a62212e4d39bc
Signer ID: YDVR2NXC10...
15 Feb 2024, 11:44:38, CST
47
EXHIBIT A
Description of the Premises
The Robert Crown Community Center complex located at 1801 Main St, Evanston, IL 60202
Document ID: 1709a2cb03aefba37c2f32a6dc71ef2130e38e037b346f27e99a62212e4d39bc
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EXHIBIT A-1
Description and Depiction of the Site
Rooftop and electrical room at the Robert Crown Community Center
Document ID: 1709a2cb03aefba37c2f32a6dc71ef2130e38e037b346f27e99a62212e4d39bc
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EXHIBIT B
Description of the System
System Type: Rooftop
Interconnection: behind the meter
Size: 966kW dc
Document ID: 1709a2cb03aefba37c2f32a6dc71ef2130e38e037b346f27e99a62212e4d39bc
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EXHIBIT C
Solar Electricity Price Schedule
The Solar Electricity Price with respect to each System under the Agreement shall be as follows:
Year of Term kWh Rate[*]
($/kWh) Year of Term
$/kWh
Rate[*]
($/kWh)
1 0.0395 11 0.0395
2 0.0395 12 0.0395
3 0.0395 13 0.0395
4 0.0395 14 0.0395
5 0.0395 15 0.0395
6 0.0395 16 0.0395
7 0.0395 17 0.0395
8 0.0395 18 0.0395
9 0.0395 19 0.0395
10 0.0395 20 0.0395
Calculated based on Base Contract Price multiplied by 0% inflation factor for each year.
Document ID: 1709a2cb03aefba37c2f32a6dc71ef2130e38e037b346f27e99a62212e4d39bc
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EXHIBIT D
Electric Funds Transfer Instructions
Each monthly invoice shall contain:
1. the time period for the electricity deliveries to the City;
2. the quantity of electricity delivered during the time period;
3. the rate for the electricity delivered including any green attributes if
relevant; and
4. the total amount due and the payment instructions. In addition, there will
be contact information for any questions that might arise.
Document ID: 1709a2cb03aefba37c2f32a6dc71ef2130e38e037b346f27e99a62212e4d39bc
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EXHIBIT E
Production Guarantee
Robert Crown Community Center
PPA
Year
Guaranteed
Annual kWh
Estimated Annual
kWh
Year 1 1,044,644 1,228,993
Year 2 1,039,420 1,222,848
Year 3 1,034,223 1,216,733
Year 4 1,031,872 1,213,967
Year 5 1,023,907 1,204,596
Year 6 1,018,787 1,198,573
Year 7 1,013,693 1,192,581
Year 8 1,011,388 1,189,869
Year 9 1,003,582 1,180,685
Year 10 998,564 1,174,781
Year 11 993,571 1,168,907
Year 12 991,312 1,166,249
Year 13 983,660 1,157,247
Year 14 978,742 1,151,461
Year 15 973,848 1,145,704
Year 16 971,634 1,143,099
Year 17 964,134 1,134,275
Year 18 959,313 1,128,604
Year 19 954,517 1,122,961
Year 20 952,346 1,120,407
1. Guaranteed Production. System Owner guarantees that the System shall
produce at least eighty-five percent (85%) of the Guaranteed Annual kWh with respect to
each Contract Year the Term as set forth in the above table of this Exhibit E, as adjusted
downward for actual weather conditions and any Excused Energy (as defined below)
(such adjusted figure, for such period, the "Guaranteed Production") until the expiration
or earlier termination of this Agreement.
2. Production Report. System Owner shall provide the City a report of the actual
production of the System and its calculation of the Guaranteed Production within ninety
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(90) days of the end of each Contract Year.
3. Guaranteed Production Payment. For any Contract Year in which the System
fails to meet the Guaranteed Production, System Owner shall pay to the City (or, at the
election of the City, provide the City a credit against future monthly charges due to
System Owner from the City pursuant to provide the City, as liquidated damages, a credit
against future monthly charges due to System Owner from the City pursuant to Article 8)
in an amount equal to (a) the positive difference (if any) between (i) the average fair
market value per kilowatt hour for energy produced by the System credited to the City
by the Host Utility during such Contract Year, and (ii) the Solar Electricity Price
corresponding to such Contract Year set forth on Exhibit C; provided, that such amount in
this clause (a) shall not exceed one hundred percent (100%) of the Solar Electricity Price
corresponding to such period; multiplied by (b) the difference between (x) the
Guaranteed Production corresponding to such period, and (y) the actual production of
the System during such period (the “Guaranteed Production Payment”).
4. Excused Energy. The guarantee set forth in this Exhibit E does not apply to the
extent of any reduced generation from the System due to the following (the "Excused
Energy"): (A) Force Majeure events as set forth in Article 14; (B) the City’s failure to
perform, or breach of, the City’s obligations under this Agreement; (C) curtailment,
outages, or other reduction of energy production of the System required or caused by
the Host Utility or by any authority having jurisdiction over the operation or availability
of the System, the City; or (D) due to Scheduled Outages.
5. Liquidated Damages. For the avoidance of doubt, System Owner shall not be
deemed to be in breach of this Agreement as a result of the System's failure to meet the
Guaranteed Production so long as System Owner complies with any obligation to pay the
City, as liquidated damages, the Guaranteed Production Payment.
Document ID: 1709a2cb03aefba37c2f32a6dc71ef2130e38e037b346f27e99a62212e4d39bc
Signature Certificate
Envelope Ref:f16443653c6641b0364563edbc0e0f6a1692f821
Author: Cara Pratt Creation Date: 13 Feb 2024, 09:44:26, CST Completion Date: 15 Feb 2024, 11:44:38, CST
Document Details:
Name: City of Evanston - SOLAR ENERGY PPA Robert Crown - v.F. -
Onyx Executed - 02.06.2024
Type:
Document Ref: 1709a2cb03aefba37c2f32a6dc71ef2130e38e037b346f27e99a62212e4d
39bc
Document Total Pages: 53
Document Signed By:
Name: Luke Stowe
Email: lstowe@cityofevanston.org
IP: 66.158.65.76
Location: EVANSTON, IL (US)
Date: 15 Feb 2024, 11:44:38, CST
Consent: eSignature Consent Accepted
Security Level: Email
Signer ID :YDVR2NXC10...
15 Feb 2024, 11:44:38, CST
Document History:
Envelope Created Cara Pratt created this envelope on 13 Feb 2024, 09:44:26, CST
Invitation Sent Invitation sent to Luke Stowe on 13 Feb 2024, 09:46:02, CST
Invitation Accepted Invitation accepted by Luke Stowe on 15 Feb 2024, 11:44:21, CST
Signed by Luke Stowe Luke Stowe signed this Envelope on 15 Feb 2024, 11:44:38, CST
Executed Document(s) successfully executed on 15 Feb 2024, 11:44:38, CST
Signed Document(s) Link emailed to lstowe@cityofevanston.org
Signed Document(s) Link emailed to lthomas@cityofevanston.org
Signed Document(s) Link emailed to cpratt@cityofevanston.org